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Statutory and Legislative Requirements

Foundational Legislation – 1703 Program

Energy Policy Act of 2005

The 1703 Program requires compliance with the Energy Policy Act of 2005, including Sections 1701-1704 thereof, which sets forth the authority of the Department of Energy to issue loan guarantees for innovative projects.

2008

2007

Other Federal Support Limitation – 1703 Program

Under some of the appropriations statutes and subject to limited exceptions, DOE will not be able to issue loan guarantees to projects that will benefit directly or indirectly from certain other forms of federal support, such as grants or other loan guarantees from federal agencies or entities (including DOE), Federal agencies or entities as a customer or off-taker of the project’s products or services, or other federal contracts, including acquisitions, leases and other arrangements, that support the project. Applicants are strongly encouraged to consult DOE representatives for further guidance.

Environmental Compliance – 1703 Program and ATVM Program

NEPA requires DOE to consider the environmental effects of proposed actions to inform agency decision making. Analyses and documentation prepared to comply with NEPA may include a Categorical Exclusion, Environmental Assessment, or an Environmental Impact Statement

This Act requires that DOE assess the effects of proposed actions on historic and archeological resources, and sites of religious and cultural significance to Tribes. DOE must consult with state historic preservation officials and Tribes to determine if an action adversely affects any historic properties

This Act requires that DOE assess the impact of proposed actions on federally listed threatened and endangered species and their critical habitat. DOE must consult with the U.S. Fish and Wildlife Service if endangered species are affected by a projectFederal laws, regulations and Executive Orders concerning wetlands and floodplains – may require consultation with U.S. Army Corps of Engineers or Federal Emergency Management Agency

Other Laws

Other laws that apply to both federal and private projects, such as the Clean Air Act, Clean Water Act, and hazardous waste management laws

Additional Legal Requirements – 1703 Program and ATVM Program

Cargo Preference Act

The Cargo Preference Act establishes certain requirements for the use of U.S. flagged vessels in the movement of cargo in international waters.

Note that the Department of Transportation (DOT) has indicated to the Department of Energy (DOE) its view that the Cargo Preference Act applies to all ocean transport of cargos for projects that receive a loan guarantee or a loan under the 1703 Program or the ATVM Program. DOE does not agree with this point of view, but acknowledges that the issue is not free from doubt. After detailed consultations, the two Departments have agreed, as a matter of policy, that DOE will apply the U.S.-flag requirements of the Cargo Preference Act in administering DOE’s 1703 Program and ATVM Program.Waivers of U.S.-flag cargo preference requirements are available on a case-by- case basis. The waiver process will be administered by the Department of Transportation in cooperation with DOE.Specific questions regarding a current application should continue to be directed toyour investment officer.

General information on cargo preference can be found at the Maritime Administration’s web site: www.marad.dot.gov/cargopreference. You may also address questions on cargo preference to the Maritime Administration’s Office of Cargo Preference and Domestic Trade at (202) 366-4610 or via email to cargo.marad@dot.gov.

Davis Bacon Act

Loan guarantees under Title XVII of the Energy Policy Act of 2005 and loans under the ATVM Program require that laborers and mechanics employed by contractors and subcontractors in the performance of construction (as defined in Department of Labor (DOL) regulations at 29 CFR 5.2(j)) financed in whole or in part by such loan guarantee or loan be paid at rates not less than those prevailing on projects of a character similar in the locality of the project, as determined by the Secretary of Labor in accordance with the Davis Bacon Act (DBA).

Under DOL regulations at 29 CFR 5.5(a)(6), a borrower who receives a loan guarantee under the 1703 Program or a loan under the ATVM Program is responsible for DBA compliance by all contractors and subcontractors. In accordance with DBA regulations at 29 CFR §1.6(g), the DBA must be complied with beginning with the construction of a project, regardless of when the issuance of the DOE loan or loan guarantee has occurred. As such, an applicant seeking a DOE loan guarantee under Section 1703 or a loan under the ATVM Program for a project that has commenced such construction prior to the issuance of such a loan guarantee or loan will have to make any necessary wage adjustments no later than the closing of the DOE guaranteed loan or DOE loan. There is an exception if the Administrator of the Wage and Hour Division, Employment Standards Administration at DOL finds that (i) such relief is necessary and proper in the public interest to prevent injustice or undue hardship and (ii) there was no evidence of intent to apply for Federal funding or assistance prior to the start of construction.